Business Partners Limited v Smith N.O and Others (1039/2017) [2021] ZAFSHC 303 (3 December 2021)

Business Partners Limited v Smith N.O and Others (1039/2017) [2021] ZAFSHC 303 (3 December 2021)

The court found that the purchaser had acted bona fide and substantially complied with its contractual obligations under the conditions of sale, having paid a significant portion of the purchase price and attempted to pay the levies. The only remaining dispute concerned the quantum of levies due to the Body Corporate. The court determined that only levies properly calculated and resolved by the owners/trustees were payable for transfer purposes, rejecting the Body Corporate's claims for excessive special levies and interest not substantiated by proper resolutions. The application for cancellation of the sale was dismissed, and the Body Corporate was ordered to issue the clearance...

Citation
[2021] ZAFSHC 303
Parties
Applicant: Business Partners Limited; Respondent: Philip Richard Smith N.O.; Respondent: Wilhelmina Jacoba Smith N.O.; Respondent: Marius Shardelow N.O.; Appellant: PS 2031 Investments CC; Respondent: Paul Farrell 18 Body Corporate
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 December 2021
Case Number
1039/2017
Procedural Posture
Civil Application / Opposed Application Under Rule 46(11) for Cancellation of Sale in Execution and Related Relief
Outcome
Application for cancellation of the sale in execution dismissed. Body Corporate ordered to issue clearance certificate upon payment of specified levies. Purchaser to provide fresh guarantee for balance purchase price. Each party to pay own costs.
Judges
Daffue
Legal Topics
Sale in Execution, Sectional Titles Act, Levies and Clearance Certificates, Rule 46 Application, Default Judgment
Civil Procedure Land and Property Sale in Execution Sectional Titles Act Levies and Clearance Certificates Rule 46 Application Default Judgment

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Parties

Business Partners Limited

Applicant

Philip Richard Smith N.O.

Respondent

Wilhelmina Jacoba Smith N.O.

Respondent

Marius Shardelow N.O.

Respondent

PS 2031 Investments CC

Appellant

Paul Farrell 18 Body Corporate

Respondent

Procedural Posture

Civil Application / Opposed Application Under Rule 46(11) for Cancellation of Sale in Execution and Related Relief

Legal Issues

  1. 1 Whether the sale in execution dated 22 November 2017 should be cancelled under rule 46(11).
  2. 2 Whether the Body Corporate is obliged to issue a clearance certificate upon payment of specified levies.
  3. 3 What amount of levies and related charges is due and payable by the purchaser to the Body Corporate for transfer purposes.

Ratio Decidendi

The court found that the purchaser had acted bona fide and substantially complied with its contractual obligations under the conditions of sale, having paid a significant portion of the purchase price and attempted to pay the levies. The only remaining dispute concerned the quantum of levies due to the Body Corporate. The court determined that only levies properly calculated and resolved by the owners/trustees were payable for transfer purposes, rejecting the Body Corporate's claims for excessive special levies and interest not substantiated by proper resolutions. The application for cancellation of the sale was dismissed, and the Body Corporate was ordered to issue the clearance...

Court Disposition

Application for cancellation of the sale in execution dismissed. Body Corporate ordered to issue clearance certificate upon payment of specified levies. Purchaser to provide fresh guarantee for balance purchase price. Each party to pay own costs.

Orders

  • The application for cancellation of the sale in execution dated 22 November 2017 is dismissed.
  • The Paul Farrell 18 Body Corporate is directed to forthwith issue the appropriate certificate in terms of section 15B(3) of the Sectional Titles Act, valid until 28 February 2022 on receipt of R206,915.88, payable on or before 17 January 2022.